On appeal from a judgment of the Circuit Court.
For the plaintiff-appellant, John B. Baratta.
For the defendant-respondent, Daniel DeBrier (William B. Hunter, of counsel).
The opinion of the court was delivered by
WELLS, J. This is an appeal from a judgment entered in the Atlantic County Circuit Court based upon a jury verdict in favor of the defendant-respondent, Marlou Holding Company, and against the plaintiff-appellant, Rita DeCicco, administratrix ad prosequendum of the estate of John A. DeCicco, deceased.
On the evening of September 14th, 1944, a Miss Stadler was walking along Kentucky Avenue in Atlantic City when she met the decedent, John A. DeCicco, in front of his place
of business. A storm of hurricane intensity had struck Atlantic City earlier that day, and the decedent was then on duty as an air raid warden in response to an emergency call from the local civilian defense authorities. Due to the condition of the streets from debris and water the decedent offered to escort Miss Stadler along her way, and at about 7:30 P.M. they were walking along Pacific Avenue past the Loumar Apartments, owned and operated by the defendant corporation. Suddenly there was a loud noise and a large mass, later identified as tile coping from the roof of the apartment building, fell to the ground. Some part of this heavy material struck the decedent and fractured his skull causing his death.
On March 1st, 1945, Rita DeCicco, a daughter of the decedent, brought an action at law under the Death Act as administratrix ad prosequendum of her father's estate. The original complaint was subsequently amended and relied upon the doctrine of res ipsa loquitur, it being alleged that the decedent, lawfully upon the highway, was struck by an object fallen from abutting premises under the control of the defendant. This complaint was upheld by the trial court in response to the defendant's motion to strike.
In addition to denying the allegations of the complaint, defendant's answer set forth several separate defenses; namely, denial of negligence on the part of the defendant, assumption of risk and contributory negligence on the part of the plaintiff's decedent, and an act of God. At the trial plaintiff offered proof of the happening of the accident, including testimony that the decedent was on duty as an air raid warden and that the fallen object came from the defendant's building. Proof was also offered showing loss resulting from the death. A motion for nonsuit was then made by the defendant, but this was denied by the trial court on the ground that sufficient testimony had been presented to justify the application of the doctrine of res ipsa loquitur and the shifting to the defendant of the burden of bringing forth evidence.
The testimony offered by the defendant was in support of the separate defenses set forth in its answer. Evidence was given by representatives and employees of the defendant corporation as to action taken for inspection and repair of the
building, including inspection on the morning of September 14th, 1944, the date of the accident. Expert testimony was given as to the intensity of the hurricane and the velocity of the wind during the afternoon and evening of the day in question. It was specifically shown that the severity of the storm exceeded any previously officially recorded for the area. In addition, considerable testimony was offered and admitted showing property damage ...